* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 13, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

for the Fifth Circuit

No. 03-60631

JUAN DE DIOS DIAZ FLORES

Petitioner,

VERSUS

JOHN ASHCROFT, UNITED STATES ATTORNEY GENERAL,

Respondent.

Petition For Review of an Order

of the Board of Immigration Appeals

A78-175-873

Before HIGGINBOTHAM, DAVIS, EMILIO M. GARZA, Circuit Judges,

Per Curiam: *

Petitioner Juan de Dios Diaz Flores ( “Diaz Flores”) appeals

the Board of Immigration Appeals’ (“BIA”) denial of his application

for asylum and order of removal to Diaz Flores’s home country of

Honduras.

In February 2000 Juan de Dios Diaz-Flores (“Diaz-Flores”) fled

Honduras and traveled to the United States seeking asylum. In2

March 2000 he was detained by immigration officers as he attempted

to enter the United States. At that time he sought political

asylum and his petition was set for hearing before an immigration

judge (“IJ”). After the hearing, the IJ held that the petitioner

had not satisfied his burden of proving past persecution or a

reasonable fear of future per secution as required to receive

asylum. 8 U.S.C. § 1101(a)(42)(A). The IJ then denied the

petition for asylum and the request to withhold removal. The BIA

affirmed the IJ’s order and Diaz Flores prosecutes this appeal.

At his evidentiary hearing Diaz Flores testified that he and

his family received frequent death threats from 1990 to 2000 for

petit ioner’s participation in a hospital workers union and a

dissenting political party. Several of Diaz Flores’s colleagues in

the political party were killed between 1997 and 2000, and

petitioner finally made the decision to flee Honduras when a close

colleague was killed in early 2000.

Although the IJ found Diaz Flores’s testimony credible, some

of that t estimony is undermined by facts petitioner presented to

the I J. First, Diaz Flores remained in Honduras for ten years

after he firs t received death threats, and despite receiving

numerou s threats he only notified the authorities of the threats

and intimidation on two occasions. Second, Diaz Flores’s family

has remained in Honduras si nce petitioner left in February 2000;

they have received no death threats and have not been harmed.2 Where asylum is not appropriate withholding removal is a l so inappropriate.

See Efe v. Ashcroft , 293 F.3d 899, 906 (5th Cir. 2002).

3 Although the IJ concluded that petitioner’s testimony was

generally credible, he was concerned about petitioner’s unexplained

failure to produce evidence from friends, family and other union

officials to corroborate the threats to him or the harm to

colleagues. Because of petitioner’s unexplained failure to produce

this evidence, the IJ concluded that petitioner failed to carry his

burden of proof to establish that he had suffered persecution in

the past or had a well founded fear of persecution.

We owe deference to the findings of the IJ and BIA, reviewing

their factual findings under the substantial evidence standard. In

reviewing for substantial evidence we must uphold the BIA's or IJ's

factual findings "unless the evidence is so compelling that no

reasonable fact finder could fail to find otherwise." L opez-Gomez

v. Ashcroft

, 263 F.3d 442, 444 (5th Cir. 2001) (internal quotation

marks omitted). After carefully rev iewing the record, we are

s atisfied that the BIA’s decision denying asylum is supported by

substantial evidence. 2

For the reasons stated above we affirm the BIA’s order.

AFFIRMED.